Academic journal article Journal of Appellate Practice and Process

Legal Writing as Good Writing: Tips from the Trenches

Academic journal article Journal of Appellate Practice and Process

Legal Writing as Good Writing: Tips from the Trenches

Article excerpt

I. INTRODUCTION

It is an old complaint that law school does not prepare students for the practice of law. (1) The criticism is often overstated--students are encouraged and indeed often required to participate in moot court, clinics, externships, and seminar courses--but not when it comes to writing. During their law school careers, students read thousands of pages of mind-numbing prose, often without the antidote of interesting and clear writing. We leave it to Bryan Garner and others to explain why old cases--whatever their analytical virtues and precedential value--should not serve as models of good contemporary prose. (2) Suffice it to say that judges and partners don't enjoy or have time to chew over young lawyers' prose to get at its meaning; they demand clarity and concision. And clarity and concision are what we should strive to produce--along with grace and creativity when the moment calls. (3)

II. THE TIPS

Good writing is especially important today, when there is increased pressure for junior lawyers to stand out. Young litigation associates generally have fewer chances to showcase their writing skills than was once the case; for obvious reasons, time-intensive tasks like document review make their way down the chain a lot faster than do writing assignments. When writing opportunities present themselves, it is important to make the most of them because partners often peg young associates as stars based on memoranda and briefs that they write early in their careers. Clear writing often indicates clear thinking--or so many believe--and young lawyers who can think and write clearly are always in demand.

Perhaps this explains why there is no shortage of useful literature on legal writing. We draw on this literature, as well as on judicial opinions and our own experiences as young lawyers working in high-pressure situations, to offer the following tips. We hope that you will find them useful when writing appellate briefs. But we also hope that you will find them useful even earlier in your career, when you are first asked to write a memorandum containing arguments that can be incorporated into a senior lawyer's brief.

A. Weave Quotes into Your Text, and Use Them Only When Necessary

The tendency to use block quotes is not unique to young associates. But block quotes are in fact something of a hallmark in the work of inexperienced legal writers. Whether they result from the young writer's fear of misconstruing the quoted language or her lack of confidence in her own voice, most of these cut-and-paste jobs should be reworked. Not only do block quotes confuse more often than they clarify, (4) they encourage skimming or even skipping. (5) You would do just as well (which is to say not very well at all) to print cases, highlight key passages, and hand them to the judge. (6)

Judges expect advocates to advocate, not to recite cold language on the assumption that the reader will study it and connect it to the present case. If you intend to write a persuasive brief, then you must create a compelling, original work that draws on, rather than parrots, authority. (7) Of course, a long quotation from a primary source can be necessary. But when a quote is that important, warn the reader that it is coming, that it is critical to your analysis, and that it should be read carefully. And to encourage her to take the plunge, briefly tell the reader why it is worth her time and energy. A good rule to remember is this: Paraphrase when the source's exact language is not critical and quote only when it is.

B. Use the Preliminary Statement to Tell the Judge Why the Brief Is Important and Why You Should Win

The preliminary statement is an interesting creature in law firms. For partners, it's often a place to put their stamp on the brief. For associates, it's the part of the brief that is most often re-written by the partners to whom they submit their drafts. …

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